ANDREW TOLL and AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY
[2009] AATA 880
•13 November 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 880
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2352
GENERAL ADMINISTRATIVE DIVISION ) Re ANDREW TOLL Applicant
And
AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY
Respondent
DECISION
Tribunal Dr P McDermott, RFD, Senior Member Date13 November 2009
PlaceBrisbane
Decision The Tribunal affirms the decision under review
..................[Sgd]............................
Senior Member
CATCHWORDS
RADIOCOMMUNICATIONS – Cancellation of apparatus licence – Applicant has no reasonable excuse why broadcasting service not commenced – Discretion not exercised – Decision under review affirmed.
Australian Communications Authority (LPON Transmitter Licences) Direction 2 of 2000 (Cth), cl 10
Radiocommunications Act 1992 (Cth), ss 3, 107(1)(f), 128
Radiocommunications Licence Conditions (Broadcasting Licence) Determination No. 1 of 1998 (Cth), para 4.11
REASONS FOR DECISION
13 November 2009 Dr P McDermott, RFD, Senior Member BACKGROUND
1. Mr Andrew Toll, the applicant, was the holder of apparatus licence No 1465430 (“the licence”).
2. The licence was issued on 1 September 1999 and authorises the operation of a low power open narrowcasting (“LPON”) service from a location specified as Rubyanna Creek near Sloping Hammock in Queensland.
3. On 12 December 2007, the licence was cancelled by the respondent, the Australian Communications and Media Authority (“ACMA”) pursuant to s 128 of the Radiocommunications Act 1992 (“the Act”). The ACMA provided reasons to the applicant.
4. The background to the cancellation of the licence originated in a complaint that was received by the ACMA on 5 May 2006. The essence of the complaint was that there were no broadcasts from the location on the allocated frequency of 87.8MHz. The location was found to be in an open cane field where no broadcasting equipment was located.
5. The ACMA invited the applicant to seek reconsideration of the decision. On 1 May 2008, the ACMA issued a reconsideration decision, which affirmed the decision to cancel the licence.
6. The applicant has sought review of the decision to cancel the licence. The parties have consented to this application being determined without a hearing.
ISSUES FOR CONSIDERATION
7. The main issues relating to this application are as follows:
· Whether the applicant has complied with para 4.11 of the Radiocommunications Licence Conditions (Broadcasting Licence) Determination No. 1 of 1998 (“the Determination”);
· Whether the applicant has complied with s 107(1)(f) of the Act;
· Whether the applicant had a reasonable excuse why the broadcasting service was not commenced by 1 September 2001; and
· Whether the discretion under s 128(1) of the Act should be exercised to cancel the apparatus licence of the applicant.
8. The applicant also contends that the decision maker erred and should have dismissed the complaint against him and granted him an extension of time to provide the service.
REQUIREMENT OF APPLICANT TO PROVIDE BROADCASTING SERVICE
9. The requirement of the applicant to provide the broadcasting service before 1 September 2001 is imposed by para 4.11(a) of the Determination, with which the applicant was required to comply by s 107(1)(f) of the Act.
10. The requirement of the applicant to comply with the conditions in the Determination is endorsed on the licence: T12, fol 17.
11. Para 4.11 of the Determination provides as follows:
Certain low power open narrowcasting services -- other conditions
(1)An apparatus licence for a low power open narrowcasting service that authorises the operation of a transmitter at a carrier frequency within the range 87.5 to 88.0 MHz (inclusive) is subject to the following conditions:
(a)unless the licensee has a reasonable excuse for not doing so, the licensee must commence the service:
(i)if the licence was in effect before 1 March 2001 (whether or not the licence is renewed between 1 March 2001 and 31 August 2001 (inclusive)) -- before 1 September 2001; or
(ii)if the licence is issued (other than upon renewal) on or after 1 March 2001 -- within 6 months beginning on the day the licence is issued;
(b)the licensee must provide the service with reasonable regularity for the period specified in the licence;
(c)the licensee must maintain records of the commencement, hours of operation and provision of the service.
12. As the licence was in effect before 1 March 2001, the Determination required that the applicant commence the service before 1 September 2001. It is common ground between the parties that the broadcasting service was not provided by that date.
13. The applicant also has put forward on argument that the date of 1 September 2001 is not an “inflexible” date. However, the Determination at para 4.11 specifies that date and does not provide for it to be varied by the ACMA.
14. I find that the applicant did not comply with para 4.11 of the Determination. Consequently, the applicant has failed to comply with s 107(1)(f) of the Act.
WHETHER THE APPLICANT HAD A REASONABLE EXCUSE FOR NOT PROVIDING THE BROADCASTING SERVICE
15. The next issue that I have considered is whether the applicant had a reasonable excuse for not broadcasting from the Rubyanna Creek location. The applicant has stated that he could not commence the service because the location is in an open cane field and without power.
16. The applicant has contended that he had a reasonable excuse why the broadcasting service was not commenced by 1 September 2001. Para 4.11(1)(a) of the Determination requires consideration of whether the applicant had a reasonable excuse for not commencing the service before that date.
17. The applicant has put forward two matters as being a reasonable excuse why the service was not commenced before 1 September 2001.
18. First, the applicant referred to adverse publicity. The tenor of what the applicant refers to as adverse publicity related to the failure of the applicant to commence a broadcasting service by September 2001 as well as the concern of those local businesses that had paid the applicant for advertising.
19. In my view there is no basis for such adverse publicity constituting a reasonable excuse as to why the broadcasting service did not commence by the required date. This is because what the applicant contends to be adverse publicity occurred well after 1 September 2001. On the submission of the applicant the adverse publicity occurred, at the earliest, on 1 November 2001.
20. I find that the adverse publicity does not constitute a reasonable excuse why the service was not commenced before 1 September 2001.
21. The second matter the applicant states to constitute a reasonable excuse is that the location was suggested by the ACMA. The applicant has stated that an officer of the ACMA advised “that he was at a site near Rubyanna Creek that would fit”. The applicant contends that Mr Allan, who is the external assessor engaged by the applicant, “was given the co-ordinates that Mr Bartlett had determined and Mr Allen then completed (or perhaps amended) the assignment”.
22. The applicant is essentially contending that an officer of the ACMA had first suggested the new co-ordinates of the location at Rubyanna Creek. However, the contemporaneous documentary material which is before me does not support this contention. That material in fact evidences that the new co-ordinates were advised by Mr Allan and not by an officer of the ACMA. Mr Allan was, as I have earlier mentioned, engaged by the applicant. The relevant records reveal that on 16 August 1999 Mr Allen, the agent of the applicant, sent an email in which he agreed that the original site was not suitable because “the minimum 5 km separation has not been achieved” and that “according to spherical distance calculations it is about 340 metres short and therefore it is appropriate that you delete it”: see T6. An activity description note on 16 August 1999 records that Mr Allan will “recalculate cords and advise”. A note that was entered on 17 August 1999 records: “Email from Tom Allan advising new cords”: see T8.
23. Having regard to this contemporaneous documentary material, I cannot accept the contention advanced by the applicant that an officer of the ACMA had first suggested the new co-ordinates of the location.
EXERCISE OF THE DISCRETION WHETHER TO CANCEL THE LICENCE
24. The next issue that I have considered is whether the discretion under s 128(1) of the Act should be exercised to cancel the licence of the applicant.
25. I have given consideration to the terms of s 128(1) of the Act, which provides: “The ACMA may, by written notice given to the licensee, cancel the licence”. By using the expression “may”, the Act is conferring a discretionary power upon the ACMA. I appreciate that there is no mandatory requirement upon the ACMA to cancel a licence in the event of non-compliance of the terms of a licence.
26. I have considered the submissions of the parties which have been made in terms of the Australian Communications Authority (LPON Transmitter Licences) Direction 2 of 2000 (“the Direction”). I do not consider it necessary to make a finding as to whether the Direction applies to the licence having regard to the preconditions in clause 10(1) of the Direction. I have, however, had regard to the criteria outlined in the Direction as the applicant and respondent have framed their submissions in terms of those criteria. I consider the criteria to be appropriate matters for me to consider in exercising the discretion under s 128(1) of the Act.
27. I will consider whether arrangements had been made by the applicant for the access and use of the site: clause 10(4)(a) of the Direction. I find that the applicant did not make any arrangements for the access and use of the site.
28. The applicant had originally submitted to the ACMA that the licence was “not allocated at the place requested.” The applicant stated in his submissions of 24 September 2004 that “it has been the problem of a suitable site (which is now resolved) which has caused the service not to have been provided on the Rubyanna licence.” However, in my view it is clear that it was the agent engaged by the applicant who selected the allotted site for the location.
29. If the allocated site was unsuitable, the applicant could have made an application while he held a licence for the variation of the location. The applicant had regularly paid licence fees to enable him to have a licence for that site. This conduct of the applicant in regularly paying fees for a licence that he was not using could, in my view, give rise to the inference that the applicant was holding the licence to prevent a rival competitor or a community group from broadcasting in the locality. In any event, it is not an efficient use of the spectrum (a limited resource).
30. I have examined whether there has been the ownership, purchase, lease or hire, or other arrangements, for the use of a transmitter: clause 10(4)(b) of the Direction. I accept the explanation of the applicant that the equipment that the applicant has referred to as “87.8s”, and which is located at Bundaberg, were intended for the Rubyanna Creek location.
31. The applicant has obtained program material which could be used for the tourist talk radio network service. This material is on two CDs which have been submitted to the respondent. I am therefore satisfied that the applicant has made arrangements to obtain programs broadcast by the licensee: see the Direction, at clause 10(4)(c).
32. As there have not been any broadcasts, there cannot be any regularity and continuity of programs broadcast by the licensee: clause 10(4)(d) of the Direction.
33. The applicant does have material which is used on the tourist talk radio network service to indicate the nature of the service that could be provided. However, there is no service which is being provided by the licensee from the Rubyanna Creek location: the Direction, clause 10(4)(e).
34. I consider that the applicant now has a log: clause 10(4)(f) of the Direction. The log was not produced by the applicant before the original decision was made to cancel the licence, despite a request to do so. However, the log does not record that any service has been provided.
35. The applicant has contended that he had financial difficulties caused by the adverse publicity. However, under the Determination at para 4.11(2), financial considerations should not be considered.
36. As required by clause 10(4)(g) of the Direction, I have given consideration as to whether there are other matters that I consider to be relevant. I have considered the objects of the Act, as stated in s 3. One of those objects is to “maximise, by ensuring the efficient allocation and use of the spectrum, the overall public benefit derived from using the radiofrequency spectrum”: s 3(a) of the Act. This object should in my view be taken into account in my exercising the discretion conferred by s 128 of the Act. From 1999 until 2007 the applicant was the holder of an unused licence.
37. Having regard to the abovementioned considerations, I exercise the discretion to cancel the licence. I base the exercise of my discretion on the fact that from 1999 until 2007 the applicant had not made any arrangements for the access and use of the Rubyanna Creek site for which the licence was held, and that at no time has a service been provided under the licence. This is not in accord with one of the objects of the Act, which is to ensure the efficient allocation and use of the spectrum.
NEW SITES
38. The applicant contends that he has identified and made arrangements for access and use of two alternative sites that would fit the planning model. He also stated that there is power access to these sites. There had been no formal request to the ACMA to vary the site before the cancellation of the licence. However, the applicant considers that the delegate had failed to give sufficient weight to his efforts. However, I have not given any weight to this submission which was unsupported by any report from an external assessor that the sites are suitable.
COMPLAINTS
39. The applicant has raised an issue concerning the complaints that have been made against him. In my view, members of the public do have a legitimate interest in ensuring the efficient allocation and use of the spectrum, which is a limited resource. Community groups or a potential applicant for a licence would have legitimate grounds for lodging a complaint in this case.
40. The applicant contends that the ACMA should have dismissed the complaint in relation to this matter. However, the investigation of the complaint established that the applicant had not complied with the Determination. The need to comply with the Determination is specified on the endorsement of the licence.
DECISION
41. I affirm the decision under review.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member
Signed: ..........................[Sgd]...................................................
Mátyás Kochárdy, Research AssociateHearing on the Papers 14 October 2009
Date of Decision 13 November 2009
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